Commencement of the Appeal – The Filing of the Notice of Appeal and Notice of Appearance
The first step in the appellate process before the CAVC is to file the Notice of Appeal within the 120-day time frame. The contents of the Notice of Appeal were discussed in our previous article on appealing to the CAVC. Since a new appeal will not be on the Court’s docket, case-initiating documents can be submitted via email to [hidden email].
Attorneys filing a Notice of Appeal must also include a copy of their Notice of Appearance. The Notice of Appearance must be in the name of an individual attorney and not a law firm. The Court does permit a limited appearance for the sole purpose of filing the Notice of Appeal.
The CAVC also requires a $50 filing fee. This must be filed within 14 days after the Court’s issuance of the Notice of Docketing. In practice, the filing fee should be submitted at the same time the Notice of Appeal is filed. For veterans experiencing financial hardship, the Court provides for the filing of a Declaration of Financial Hardship in lieu of the filing fee.
The Record Before the Agency
Within 60 days after the Notice of Docketing, the counsel for the Secretary must serve a copy of the Record Before the Agency (“RBA”). The RBA is a copy of the entire claims file. It contains all the documents in the claims file as of the date of the BVA decision being appealed. The RBA is served on the appellant (or his counsel) and is not filed with the Court. The Secretary’s counsel will file a notice with the Court that the RBA was served. This starts the time in which an appellant has to respond to the RBA.
For attorneys, the Secretary will serve the RBA in the form of a CD containing the claims file in “PDF” format. The CD is searchable and given that many of these files can be several thousand pages, file storage is more manageable.
The attorney should review the RBA and respond within 19 days after the date it was served. The initial review should be to ascertain completeness and legibility. If there are no issues with the RBA, the attorney should file a statement with the Court indicating acceptance of the RBA. If the attorney does not file a statement accepting the RBA, then after the 19th day the Court will deem the RBA as accepted.
If there is a dispute, counsel should contact his adversary and try to resolve the disagreement. If the disagreement cannot be resolved, then notice should be filed with the Court indicating a dispute and what efforts the parties have taken to resolve the dispute.
The Notice to File Brief
Upon acceptance of the RBA, the Court will issue a 60-day Notice to File Brief. This places the appellant on notice that his or her brief is due within 60 days.
The Briefing Conference
The briefing conference is similar to a settlement conference that exists in other appellate courts. It is part of the Court’s dispute resolution process. The conference is a crucial event in the case. These conferences only take place in cases involving attorneys.
As an attorney, it is your job to get the case overturned and remanded as fast as possible. Remember, for a veteran to appeal as far as the CAVC means that his case has been on appeal for many years. As such, trying to resolve the case without having to go to brief will save time and money.
Shortly after the Court issues a Notice to File Brief, it will schedule a briefing conference. You will receive an order indicating the date and time of the conference. These conferences are conducted over the telephone between the counsel for the parties and a staff attorney from the Court’s Central Legal Staff. The Court endeavors to schedule the conferences approximately 30 days before the briefing deadline.
Next, the attorney must prepare his summary of the issues and serve it on opposing counsel and the Central Legal Staff no later than 14 days prior to the conference. Service is generally made by email. The attorney must then file a Certificate of Service with the Court indicating the date and manner of service.
The summary of issues or the conference memo is critical. Your case can be won on the strength of the conference memo. To prepare, the attorney must undertake a thorough chronological review of the entire RBA. The memo should include a discussion of the issues and relevant law and facts–with citation to the relevant pages from the RBA. The memo must be double-spaced and in 13-point font. It cannot exceed 10 pages.
The Central Legal Staff attorney will initiate the conference call. The counsel for the Secretary will generally provide a response to the memo and disclose the Secretary’s position. Appellant’s counsel then has an opportunity to discuss the issues as well. Often, an agreement for a joint resolution is reached at the time of the conference. This is where the Secretary recognizes error in the BVA decision and the parties agree that the matter should be remanded.
The Joint Motion for Remand
Assuming the parties reach an agreement as to BVA error, they will enter into what is called a Joint Motion for Remand (“JMR”). In practical terms, this is a settlement agreement that gets filed with the Court. A sample JMR is attached.
There are several points that warrant emphasis relative to a JMR. In Stegal v. West, 11 Vet. App. 268, 271 (1998), the Court ruled that a remand by the Court or the BVA imposed a concomitant duty on the Secretary to ensure compliance with the terms of the remand. The current practice of the Court is to issue an order granting the JMR and citing to Stegal.
The goal of the JMR is to narrow the legal or factual issues that the BVA would have at its disposal to construct another denial. The idea is that the BVA adjudicator should be “boxed in” to reach a favorable conclusion. The JMR should be as precise as possible, and it should specify the legal and factual errors that were made in the past.
After the JMR is filed, the Court will issue an order and then a mandate. An application for attorney fees can be made within 30 days after the mandate.
Joint Stay Motions
If the parties reach an agreement to enter into a JMR, they can file a Joint Motion for Stay of Proceedings. This would “stay” the case for up to 60 days to draft the JMR. The first stay motion is usually for 30 days and must be a joint filing. The stay can be extended up to an additional 30 days. Upon consent, either party can extend the stay unilaterally. Once the stay is lifted, the timeline of the case resumes at that point where it left off when the stay was imposed.
What Happens When There is no Settlement?
In the event that the parties do not reach an agreement at the briefing conference stage, then the parties proceed to the briefing stage. Under the current rules of practice, in cases where the appellant is represented by counsel, the brief due date must be re-calculated at the time of the briefing conference. Although there was an initial 60-day briefing deadline, this deadline gets re-calculated to be 30 days after the date of the briefing conference.
Preparing the Brief
U.S. Vet. App. R. 28 and R. 32 contain the information pertaining to the contents and format for a brief. See sample attached. It must contain a table of contents, a table of authorities, including citations to the RBA, a statement of the issues, a statement of the case, a legal argument, and conclusion.
The principal brief cannot exceed 30 pages. If oral argument is desired, the appellant must file a separate motion.
It is also important that the brief raise all potential legal issues. The failure to address an issue will result in that issue being abandoned. All issues must be raised in the principal brief. The attorney cannot raise a new issue in his reply brief–unless it is in response to an issue raised by the Secretary’s brief.
The Reply Brief
The Secretary has 60 days to respond to the appellant’s brief. The reply brief must be filed within 14 days after the Secretary’s brief. It is optional to file a reply brief.
The Record of Proceedings
After the briefs have been filed, the Secretary will compile a Record of Proceedings (“ROP”) that contains all the relevant documents necessary for the Court’s review and disposition of the case. The Appellant must review the ROP to ensure its accuracy and completeness. The appellant has 14 days to respond to the ROP. If he fails to file a statement accepting the ROP within the time allowed, it will be deemed accepted.
The Court will generally make a decision in 10-12 months after the briefs have been filed.
Motions are governed by U.S. Vet. App. R. 27. Motions for extensions are governed by U.S. Vet. App. R. 26. Extension motions are the most common. In general, the parties can extend any required event up to 45 days.
Appeals from Final CAVC Decisions
The Federal Circuit has exclusive jurisdiction to hear appeals from CAVC denials. The practice and procedure before the Federal Circuit is beyond the scope of these materials. Keep in mind, however, that appeals to the Federal Circuit must be made within 60 days after the CAVC final decision.